Michael Snyder v. State of Arkansas

Michael SNYDER v. STATE of Arkansas

CR 97-570                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 19, 1998


1.   Constitutional law -- elements needed for criminal law to be
     ex post facto --  In Weaver v. Graham, 450 U.S. 24, 27 (1981),
     the United States Supreme Court stated that the Court's
     decisions prescribe that two critical elements must be present
     for a criminal or penal law to be ex post facto: it must be
     retrospective, that is, it must apply to events occurring
     before its enactment, and it must disadvantage the offender
     affected by it.

2.   Constitutional law -- Weaver case clarified -- proper focus of
     ex post facto enquiry. -- The United States Supreme Court
     later stated that although the Weaver case suggested that
     enhancements to the measure of criminal punishment fall within
     the ex post facto prohibition because they operate to the
     disadvantage of covered offenders, that language was
     unnecessary to the results in those cases and was inconsistent
     with the framework developed in Collins v. Youngblood, 497 U.S. 37, 41 (1990); the Supreme Court further explained that
     after Collins, the focus of the ex post facto inquiry is not
     on whether a legislative change produces some ambiguous sort
     of disadvantage, nor, on whether an amendment affects a
     prisoner's opportunity to take advantage of provisions for
     early release, but on whether any such change alters the
     definition of criminal conduct or increases the penalty by
     which a crime is punishable.

3.   Juveniles -- argument not made that admissibility of evidence
     of prior juvenile adjudication changed nature or definition of
     offense -- ex post facto principle not violated. -- Although
     appellant contended that Ark. Code Ann.  16-97-103 was
     applied retrospectively and that he was disadvantaged by its
     application, he did not argue that the admissibility of the
     evidence of the prior juvenile adjudication changed the nature
     or definition of the offense for which he was tried and
     convicted or that it increased the penalty; thus the ex post
     facto principle was not violated; the provisions for
     admissibility of evidence in a sentencing proceeding found in
      16-97-103 do not violate the ex post facto principle; the
     conviction was affirmed.

4.   Statutes -- construction of -- effect given to intent of
     General Assembly. -- The basic rule of statutory construction
     is to give effect to the intent of the General Assembly;
     absent a clear indication that a drafting error or omission
     has circumvented legislative intent, the appellate court does
     not interpret a legislative act in a manner contrary to its
     express language. 

5.   Juveniles -- trial court erred in certifying appellant as 
     habitual child sex offender -- appellant had no prior
     conviction for sex offense -- case remanded. -- The trial
     court erred in certifying appellant as an habitual child sex
     offender pursuant to Act 587 of 1987, the Habitual Child Sex
     Offender Registration Act, because appellant did not have a
     prior conviction of a sex offense; pursuant to the clear
     language of Act 587, 1, a habitual child sex offender
     includes any person who, after August 1, 1987, is convicted a
     second or subsequent time; the General Assembly has recognized
     that there is a difference between a conviction and an
     adjudication; appellant's juvenile delinquency adjudication
     should not have been considered a prior conviction for
     purposes of the Act; the order applying the Habitual Child Sex
     Offender Registration Act was reversed and the case remanded. 


     Appeal from Lawrence Circuit Court; Harold Erwin, Judge;
affirmed in part; reversed and remanded in part.


     Val P. Price, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly S. Terry, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice. 
     Michael Snyder, the appellant, was convicted of two counts 

of rape by deviate sexual activity with an eight-year-old boy.  He
was sentenced to fifteen years' imprisonment on each count, to be
served consecutively.  Mr. Snyder argues that the Trial Court erred
by admitting evidence, during the sentencing phase of his trial, of
a prior juvenile delinquency adjudication.  He contends that the
prior adjudication was inadmissible pursuant to the law extant at
the time the prior juvienile delinquency petiton was filed and at
the time the adjudication occurred.  He argues that the application
of the current statute, which would allow its admissibility was a
violation of the ex post facto legislation principle, citing cases
interpreting the United States Constitution.  He also argues that
the Trial Court's order that his name be registered as an habitual
child sex abuser was in error because his prior juvenile
adjudication was not a "conviction," and thus his case does not
fall within the statutory mandate for registration.  We agree with
the latter point of appeal but not with the former; thus we affirm
in part and reverse and remand in part.

              1.  Juvenile delinquency adjudication
     Mr. Snyder fails to cite the law applicable in 1991 to
admissibility of juvenile adjudications in subsequent criminal
proceedings.  He contends, however, that it would have made the
adjudication inadmissible in the proceedings now before us.
     The current law dealing with admissibility of juvenile
adjudications in subsequent criminal-trial sentencing proceedings
is found in Act 535 of 1993,  2(c)(3) and Act 551 of 1993, 
2(c)(3).  Those acts are codified as Ark. Code Ann.  16-97-103
(Supp. 1997).  Section 16-97-103(3)(i) provides that prior juvenile
adjudications are admissible only if the relevant value of the
adjudication outweighs its prejudicial value.  Mr. Snyder does not
argue on appeal that his prior adjudication is inadmissible based
on this provision.  The statutory provision also provides that
prior juvenile delinquency adjudications can only be admitted for
crimes for which the juvenile could have been tried as an adult. 
16-97-103(3)(ii).  Mr. Snyder, whose prior adjudication was based
on rape, does not contend that he could not have been tried as an
adult based on his crime of rape.  The only time limitation on use
of such an adjudication in the sentencing phase of a trial
resulting from a subsequently committed offense is, "That in no
event shall delinquency adjudications for acts occurring more than
ten (10) years prior to the commission of the offense charged be
considered;...."   16-97-103(3)(iii).  Mr. Snyder does not contend
that the acts for which he was adjudicated delinquent occurred more
than ten years prior to the acts of which he stands convicted in
the case now before us.    
     Mr. Snyder argues that the admission of the prior juvenile
delinquency adjudication violates the ex post facto clause, citing
Weaver v. Graham, 450 U.S. 24, 27 (1981), in which the United
States Supreme Court stated:  "[O]ur decisions prescribe that two
critical elements must be present for a criminal or penal law to be
ex post facto: it must be retrospective, that is, it must apply to
events occurring before its enactment, and it must disadvantage the
offender affected by it."   He contends that  16-97-103 was
applied retrospectively and that he was disadvantaged by its
application.  Assuming that there was a law in 1991 that would have
prevented admissibility of Mr. Snyder's juvenile delinquency
adjudication in a subsequent criminal trial, we cannot agree that
application of the law applicable at the time of the subsequent
trial would violate the ex post facto principle.  
     The United States Supreme Court, in California Dept. of
Corrections v. Morales, 514 U.S. 499 (1995), stated that although
the Weaver case "suggested that enhancements to the measure of
criminal punishment fall within the ex post facto prohibition
because they operate to the `disadvantage' of covered offenders, .
. . that language was unnecessary to the results in those cases and
is inconsistent with the framework developed in Collins v.
Youngblood, 497 U.S. 37, 41 (1990)."  Id. at 506 n. 3.  The Supreme
Court further explained that "[a]fter Collins, the focus of the ex
post facto inquiry is not on whether a legislative change produces
some ambiguous sort of `disadvantage,' nor, . . . on whether an
amendment affects a prisoner's `opportunity to take advantage of
provisions for early release,' . . . but on whether any such change
alters the definition of criminal conduct or increases the penalty
by which a crime is punishable." Id.  
     Mr. Snyder does not argue that the admissibility of the
evidence of the prior juvenile adjudication changed the nature or
definition of the offense for which he was tried and convicted or
that it increased the penalty.  It is thus clear to us that the ex
post facto principle was not violated.  Cogburn v. State, 292 Ark.
564, 732 S.W.2d 807 (1987); Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987).  Although not in the context of considering a
prior juvenile adjudication, we have held that the provisions for
admissibility of evidence in a sentencing proceeding found in  16-
97-103 do not violate the ex post facto principle.  Williams v.
State, 318 Ark. 846, 887 S.W.2d 530 (1994).  We affirm the
conviction.

        2.  Habitual Child Sex Offender Registration Act
     In his second point on appeal, Mr. Snyder argues that the
Trial Court erred in certifying him as an habitual child sex
offender pursuant to Act 587 of 1987, the Habitual Child Sex
Offender Registration Act, since replaced by Act 989 of 1997, the
Sex and Child Offender Registration Act of 1997, Ark. Code Ann. 
12-12-901 through 12-12-920 (Supp. 1997).  His argument is that his
juvenile delinquency "adjudication" should not be considered a
prior "conviction" for purposes of the prior Act.  At the time of
Mr. Snyder's conviction, the Act imposed a registration requirement
on persons who had been "convicted" of certain sex offenses a
second or subsequent time.  See Act 587, 2.
     We adhere to the basic rule of statutory construction which is
to give effect to the intent of the General Assembly.  Coleman v.
State, 327 Ark. 381, 938 S.W.2d 845 (1997).  Absent a clear
indication that "a drafting error or omission [has] circumvent[ed]
legislative intent," we do not "interpret a legislative act in a
manner contrary to its express language." Id.  See City of Little
Rock v. Arkansas Corp. Comm., 209 Ark. 18, 180 S.W.2d 382 (1945)
("[I]f the words are free from ambiguity and doubt, and express
plainly, clearly and distinctly the sense of the framers of the
instrument, there is no occasion to resort to other means of
interpretation.").
     The clear language of Act 587,  1, provided, in part, that a
"`[h]abitual child sex offender' includes any person who, after
August 1, 1987, is convicted a second or subsequent time . . . .
[Emphasis supplied.]"  The General Assembly has recognized that
there is a difference between a conviction and an adjudication. 
See, e.g., Ark. Code Ann.  16-97-104 (Supp. 1997) ("Proof of prior
convictions, both felony and misdemeanor, and proof of juvenile
adjudications shall follow the procedures outlined in  5-4-504 --
5-4-504.").  See also Ark. Code Ann.  5-73-130(a) (Repl. 1997)
("Whenever a person under eighteen (18) years of age is unlawfully
in possession of a firearm, the firearm shall be seized and, after
an adjudication of delinquency or a conviction, shall be subject to
forfeiture.").  
     We reverse the order applying the Habitual Child Sex Offender
Registration Act because Mr. Snyder does not have a prior
"conviction" of a sex offense.  We remand the case for orders
consistent with this opinion.
     Affirmed in part, reversed and remanded in part.